In the Arab world, a woman must convince the court that she is 'harmed' by her husband to get a
divorce.

The Current Status

The current status of
personal status laws in Arab countries have three distinct flaws: the absence of
a unified law, the absence of equality between men and women, and the absence of
equality between people of different religious denominations. We shall speak
briefly of each to explain.

1. Absence of a unified law
and legislation:

To understand this point,
we must show the reader what the current status is in a country like
Switzerland, where there are different religious groups, all of whom have the
Swiss nationality. There are Christians divided into sects, the most important
of which are the Catholics, Protestants and Orthodox, and there are the Eastern
Jews and Western Jews, and then there are Muslims of different denominations the
most important of which are the Shi'a and the Sunni. Additionally, there are
also a number of smaller Denominations and sects whose origins are either
Eastern or Western such as Bahais, Yazidis and the Druze. There are also those
who refuse to belong to any religious denomination.

We may therefore say that
Switzerland has at least twice as many religious groups as any Arab state, but
in Switzerland there is only one law that governs matters of personal status
(marriage, divorce, custody, inheritance and guardianship). This law is amended
by the Swiss parliament from time to time to be more just and suitable to
society. In cases of disputes among the Swiss in personal status matters, they
all resort to the same courts whatever their religion, because in Switzerland
there is one law and one judiciary.

If we go back to our Arab
world, we shall find that its legal and judicial system are inherited from past
ages with very slight differences from one country to the next. They may be
categorized as follows:

- Some countries have
neither a written personal status law, nor a unified one, and they do not even
have unified courts for Muslim citizens. In Saudi Arabia, the Emirates and
Bahrain, courts are still divided between the Sunni courts and Shi'a courts, and
both have no written laws but instead depend on the old fikh (jurisprudence)
books.

- In
some countries such as Palestine, Lebanon, Jordan, Syria and Iraq, there are
still different courts for different religions. In Iraq, for example, the law
recognizes 17 denominations with their own laws and courts.

- In Egypt, the
denominational courts were abolished after 1955, but the denominational laws
remained for Muslims, Christians and Jews. The personal status for Muslims is
not governed by one law, but by several fragmented and incomplete laws that
force Egyptian courts to resort to very old fikh books, especially those
prepared by Kadri Pasha in the previous century.

- In Tunisia, since 1956
all citizens have been governed by one law and one court which are the State
courts. However, the personal status laws in this country kept some principles
that differentiate between the different denominations and sects. It allows the
marriage between a Muslim man and a non-Muslim woman, but does not allow the
marriage of a Muslim woman to a non-Muslim man. It also prohibits inheritance
between Muslims and non-Muslims.

We may also note that it is
very difficult to research any denominational or sectarian laws. Religious
courts rarely publish their verdicts, and articles of personal status for
non-Muslims are almost never taught in Arab universities, almost never written
about, and virtually unknown. To appeal against some of them, especially the
Catholics, one must resort to a higher court outside the state.

Some might consider this
system an expression of religious tolerance, but such a system has its
drawbacks, because it amounts to going beyond the state's sovereignty in the
law. It also emphasizes divisions within the state that decrease the feelings of
citizens of belonging to their country, and weakens the spirit of solidarity
within a society. Making societies strong requires this solidarity, without
which the strength of a group will not be accomplished. Such divisions also
encourage the loss of people's rights which will not be achieved except through
a knowledge of the laws that govern them, and therefore fall prey to the courts,
especially when there is a relationship between individuals belonging to
different denominations or sects, which requires resorting to different courts
and different verdicts. Even more dangerous is that the system used is most
often biased towards those belonging to its denomination and against those who
do not, which is contrary to the principles of human rights as we shall see
later.

2.
The inequality between men and women:

It is no secret that the
personal status laws in the Arab world are the laws that mostly emphasize
inequalities between men and women. If we talk about Muslim laws as the laws of
the majority in the Middle East, we shall notice the following:

- Some Arab countries have
tried to limit the phenomenon of marrying little girls at young ages or marrying
much older men, or marrying girls forcefully without their consent. But those
phenomena are still widespread in several Arab countries, especially those
countries without written laws preventing the practice.

- All Arab countries except
Tunisia allow polygamy, although some countries have tried to halt this
practice. Naturally, those laws prevent women from polyandry. This is completely
contrary to the principle of equality, especially because a man's marriage is
without the consent of his wife.

- All countries except
Tunisia allow a man to divorce his wife without justification, but a woman who
demands divorce has to convince the court in order to get rid of her
husband.

- A
Muslim man has the right to prevent his wife from going to work or even leaving
the house. She may not travel without his permission. A woman, of course, has no
right to object to her husband's going to work, travel or simply going out. A
husband's wages are solely his own and if he divorces his wife she has no right
to his money except what he promised to give her as dowry, though the courts may
allow her certain expenses for a short time.

- In inheritance, a woman
gets half of what a man gets, and this is true even in Tunisia.

3. Inequality between
members of different sects:

We have noted the
following:

- A
non-Muslim may become a Muslim, whereas a Muslim may not change his religion or
even express a religious opinion that is different from what is generally agreed
upon. Anyone who dares contradict this principle is considered an apostate and
thrown in prison, or is killed if he cannot escape to a foreign country. He is
also separated from his wife and his money is distributed to his relatives as if
he were dead.

-
A Muslim man may marry a non-Muslim woman who belongs to one of the three
religions, while she may still belong to her religion if she does not wish to
embrace Islam. But a man who is of another religion may not marry a Muslim woman
without becoming a Muslim. The non-Muslim who marries a Muslim woman without
changing his religion has an illegitimate marriage and can be separated from his
wife by force. Some even demand the murder of the man.

- In the case of a mixed
marriage between a Muslim man and a non-Muslim woman, their children are
considered Muslim even if they decide otherwise. Children have no right to
change their religion even when they become older, and if they do, they are
considered apostates. Arab laws do not acknowledge freedom of religion and
choice.

- Arab
laws prevent inheritance between a Muslim and a non-Muslim. In mixed marriages, a Christian wife may
not inherit the property of her Muslim husband, and a Muslim husband may not
inherit the property of his Christian wife. The Muslim children may also not
inherit the property of their mother. If a Muslim becomes an apostate, then his
Muslim relatives take his money, but if a Christian becomes a Muslim, his
Christian relatives may not inherit anything after his death.

This status is not only a
source of discrimination against Muslims and men, but is also against the
principle of freedom of religion in general which is the basic principle to
protect the dignity of individuals. Denominational and sectarian identity is
often not based on conviction, but is simply a necessity to exercise basic
rights in personal status. Those who do not want to belong to any religious
sects because they have no religious convictions have no rights at all. They may
not marry or inherit property. That is how religion becomes a kind of thorn
without moral value that threatens the rights of individuals, and will threaten
society sooner or later. But how do we get out of this legal and religious
impasse?

Changing the current situation

We mentioned that Egypt
unified the courts but did not unify the laws. Although this is considered an
important step, it is still incomplete, because it did not achieve equality
between men and women or individuals from different sects or religions. It also
legitimized legal chaos and protected sectarian laws. Egypt tried once to bypass
this problem after unification with Syria in 1958. A committee was formed to
draft a unified law for all non-Muslim sects, but it was never issued. Even if
it had been issued, it still would not have improved the legal chaos because it
would not have solved the problem of equality between men and women or members
of the different sects and religions.

We saw in Tunisia that the
judiciary and the legal system are unified. We may consider Tunisian law an
important step in solving the problem of equality between men and women by
preventing them from divorce at the will of the husband, without resorting to
courts and preventing polygamy, but those laws neither solved problems of
inheritance nor the problems of individuals from different religions and
sects.

The Arab
League tried once to unify personal status laws. The Council of Arab Justice
convening in Kuwait in 1988 approved a draft law for an Arab unified personal
status law. It was drafted by a committee of seven men, without any
participation from women or individuals belonging to different religions. This
project is considered an important step for countries that have not yet made any
personal status laws for Muslims such as Saudi Arabia, the Emirates and Bahrain,
or those with laws that are not unified, such as Lebanon and Syria. But this
project is considered a grave Arab mistake because it disregards the principles
in the Tunisian law specifying equality between men and women, and it also did
not present any solutions to the problem of religious inequality.

Here we must discuss an
extremely important movement by a group of women from Tunisia, Algeria and
Morocco who called themselves the '1995 Group for Equality'. They issued a
document called 'One hundred changes for legislation in the spirit of equality
in the matters of personal status and family laws'.[1] Members of this
committee included a practising lawyer from Tunisia, a professor of law from
Tunisia, another professor from Morocco, a female Algerian lawyer and a male
Algerian lawyer, all of whom are Muslim. This document was presented to the
Beijing Women's Conference in 1995, and Asma Khidr, a Christian lawyer of
Palestinian origin presented the document. Khidr was born in Al-Zababda village
from which I myself come. She now works as a lawyer in Amman and is the director
of the Al-Haq Centre in Ramallah.

This document did not
discuss the diversity of personal status laws, because this problem is not as
important in the countries of the Maghreb as it is in Egypt and other Arab East
countries (Palestine, Jordan, Syria, Lebanon and Iraq). It merely discussed the
problem of equality between men and women, and problems between the different
sects and religions. Appended to that document were clauses explaining the
principles on which they based their document. Its aim was to convince the
Muslim male that the document is not contrary to Islam.

I urge all Arab countries,
including the Palestinian authority, to unify all courts and cancel all
sectarian-based personal status laws, substituting them for this document which
is considered the most important document presented in this matter that
coincides with the principles of human rights.

Acknowledgement: This
article was first published in Peoples Rights Women's Rights: A Quarterly
Women's Human Rights Journal. No. 3. Dec. 1996. and is reproduced with prior
permission from Peoples Rights.